Phelps v. Porter

| Ga. | Dec 15, 1869

McCay, J.

Perhaps if the words of the Constitution be taken in their strict philological sense, the exceptions to the general provision are confined to the realty. A “ homstead,” in its strict signification, can only refer to realty, although it would require some modification to make it apply to land without a house upon it. In our judgment, however, this clause of the Constitution is to be construed in reference to its intent, to-wit: to set apart for the family a portion.of the assets of the “ head,” and protect it from sale by the creditor. Its fundamental, equitable, basis is, that a man owes to his wife and children a support, and as they are for the most part incapable of self-support, and by their connection with him, have no direct interest in their own labor, society, for its own protection, has a right to see to it that they shall not be cast homeless and penniless upon it for support. Yet the same great equity which declares the wife and children to be creditors of the husband, also admits that property unpaid for is not, according to the great law of right, properly to be taken even for the support of the family, nor is there in the nature of the thing any difference between real and personal property in this respect.

There are, it is true, some technical rules in relation to the transfer of property which separate the two classes very widely. But in abstract equity, property is property, be it real or personal, and it is nothing but just, when we go into the sphere of equity, honest, ábstract ri'ght, to defend the right of a family to this provision to keep the balance even. There is no equity in applying property not paid for to the use of even the wife and children.

Whilst, therefore, we admit that a strict verbal criticism would perhaps confine the exceptions to the realty, yet the equity of the statute extends them to the personalty, and so we hold.

Judgment affirmed.